Marijuana at the Crossroads: Event asks if MMJ lawyers are breaking oath

According to keynote speaker and DU prof Sam Kamin, "Marijuana at the Crossroads," a Sturm College of Law symposium that starts tomorrow (see the schedule below), aims to get beyond the usual pot palaver.

Sample subject: Are attorneys breaking their professional oath simply by specializing in medical marijuana?

Medical marijuana law is a moving target, since its particulars seem to shift on a seemingly daily basis. Take U.S. Attorney John Walsh's seizure letters to 23 dispensaries near schools, many, if not all, of which appear to be legal under Colorado's standards. As such, "it's a procrastinator's dream to write a keynote speech on marijuana," Kamin jokes, adding, "There's no point in writing it until the day of."

Sam Kamin.

Kamin feels marijuana-related earthquakes will continue to rattle the state throughout 2012 due in part to the likelihood that voters here will have a chance to decide whether to regulate and/or legalize cannabis for recreational adult use. Law Enforcement Against Prohibition's Neill Franklin believes federal anti-marijuana efforts will escalate as a result, and Kamin doesn't dismiss this theory.

"California was the first battleground," he notes. "Proposition 19," a 2010 legalization proposal, "was pretty hotly contested there, and you had the Attorney General of the United States [Eric Holder] weigh in and say, 'We're not going to put up with you guys legalizing marijuana.' And that's where there were the first grand jury indictments and letters sent to landlords and businesses. So they really made something of a test case of California, and that's a blueprint of what 2012 looks like in Colorado, with regulation heading for the ballot and the crackdowns starting."

These conflicts set up what Kamin sees as an untenable situation.

"We can't go on the way we are now," he maintains. "We have a multi-million dollar industry that employs thousands, if not tens of thousands, in Colorado and brings in a lot of tax revenue, even though every sale violates federal law. That's no way to run a railroad, and it can't go on like that indefinitely. And that asks the question: What are the ways it could go?"

His most likely scenarios: "We could have ten more states legalize or come up with medical marijuana laws -- and then I think the pressure would be pretty heavy on Washington from representatives in those states saying, 'You've got to do away with federal prohibition.' Or we could have a big crackdown, where the feds start busting not dozens of people, but hundreds, which could drive the industry underground. Or there could be some federal-state cooperation, where the feds could say, 'We're really going to leave states like Colorado alone. We'll continue prohibition, but states that can show they're regulating it well and safely and efficiently will get a pass."

U.S. Attorney John Walsh.

In the meantime, he believes the current confusion benefits no one. "If you're running a dispensary, you don't know what your rights and obligations are. If you're a patient, you don't know if you could lose your public housing or have your job taken away or face serious jail time for being a medical marijuana patient. It's too contradictory to go along this way indefinitely."

Of these prospects, Kamin thinks a tipping point of states legalizing medical marijuana may be the likeliest. "Right now, you've got seventeen jurisdictions out of 51," counting Washington, D.C., that have legalized MMJ. "That's about a third. And if it gets to half the states -- or half of the population -- that means half of the representatives in Congress will be from states that say this is medicine. I think that makes the future of federal prohibition pretty tenuous.

"We're not that far from getting to that place. It's only eight or nine more states. Of course, it took us fifteen or twenty years to get to the current number of states, and it might be ten or twenty more years to get the rest of the states to line up. But I think that's where the fight is going to be."

"I think there was a lot of optimism when Obama came into office," he points out. "A lot of people were looking to get into the industry, and if you wanted to do that, there were sound bites you could hang onto that suggested Obama would be more lax when it came to marijuana enforcement, and pictures on the net of him smoking what looked like a joint. But now when you talk to people in the industry, they'll say Obama has been at least as bad as George W. Bush as far as enforcing the Controlled Substances Act."

Moreover, "There are good sort of libertarian reasons why a Republican could be against prohibition -- freedom from government and any of the things Ron Paul talks about pretty regularly. Now, we haven't seen an example of that nationally, where a mainstream Republican is making those libertarian arguments. But people had big hopes for Obama that look like they were misplaced, so I suppose it's possible."

Questions of what Kamin calls "the federal-state balance" will be front and center during the symposium, but he says "another piece will be the professional ethics questions, some of which are pretty complicated in terms of the doctor-patient relationship. But there's also the legal ethics piece about the role a lawyer can play in advising and counseling marijuana clients. Lawyers take an oath to uphold the laws of the United States, and while selling medical marijuana in Colorado may not be illegal under state law, it certainly is a federal crime.

"That really puts lawyers in a difficult spot -- and even state regulators are facilitating criminal conduct. When they give someone a certificate saying, 'You can sell all the marijuana you want from your storefront,' you're helping that individual violate federal law. So we're going to talk about this being prohibited at the federal level yet written into the state constitution, and the demands on the profession when it's difficult if not impossible to abide by both of those requirements."

Honorable Frederic Rodgers -- The judicial ethical issue of a trial judge following his or her Judicial District's Chief Judge Order mandating no marijuana use for criminal defendants on bond, conditions of release, probation or deferred sentences.